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907 F.

2d 11


Luis CEPEDA, Defendant, Appellant.
No. 90-1117.

United States Court of Appeals,

First Circuit.
Heard June 7, 1990.
Decided June 26, 1990.

John F. Cicilline, Providence, R.I., for defendant-appellant.

Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S.
Atty., and Kenneth P. Madden, Asst. U.S. Atty., Providence, R.I., were on
brief, for appellee.
Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and
SELYA, Circuit Judge.
BREYER, Chief Judge.

The appellant, Luis Cepeda, was convicted of distributing heroin to an

undercover agent. Under the Sentencing Guidelines, he was sentenced to
twenty-seven months imprisonment. He appeals from that sentence, claiming
that he should have received reductions for acceptance of responsibility and for
minimal participation in the offense. We find no error in the sentence imposed
by the district court.

1. Acceptance of Responsibility. The Sentencing Guidelines state that a

defendant's offense level shall be reduced by two levels if he "clearly
demonstrates a recognition and affirmative acceptance of personal
responsibility for his criminal conduct." U.S.S.G. Sec. 3E1.1(a). The
application notes recognize that "[t]he sentencing judge is in a unique position
to evaluate a defendant's acceptance of responsibility." They provide that the
judge's determination "is entitled to great deference on review and should not
be disturbed unless it is without foundation." U.S.S.G. Sec. 3E1.1, application

note 5. The court below found "no indication of genuine remorse," noting that
the defendant had not admitted his guilt until after he had been convicted by a
jury. While this alone would not preclude a finding that a defendant had
accepted responsibility, the district judge was entitled to consider the timing of
the confession in evaluating its credibility. See U.S.S.G. Sec. 3E1.1, application
note 1(g).

The appellant also argues that the district court should have granted him the
reduction for acceptance of responsibility because he voluntarily withdrew from
criminal activity. See U.S.S.G. Sec. 3E1.1, application note 1(a). His only basis
for this claim is that federal investigators did not discover any evidence of
appellant's involvement in drug transactions other than the one for which he
was indicted. However, lack of evidence of other criminal activity does not in
any way indicate an affirmative withdrawal from such activity. The district
court could reasonably reject this argument.

We see no basis for overturning the court's determination. See U.S. v. Royer,
895 F.2d 28, 29-30 (1st Cir.1990) (credibility and demeanor are crucial in
determining whether defendant has accepted responsibility, and district court's
denial of reduction will not be overturned unless clearly erroneous).

2. Minimal Participation. The appellant says that, since he was only a courier
for one drug transaction, while his two co-defendants were involved in much
more extensive drug activity, the district court should have granted him a fourlevel reduction as a "minimal participant" (or a two-level reduction as a "minor
participant") in the criminal activity. See U.S.S.G. Sec. 3B1.2. This argument
ignores the fact that the appellant was only charged with one count of a fourcount indictment, and that count described only the one transaction for which
he was convicted: selling 15 grams of heroin. The district court was not legally
required to consider appellant to have been a minimal or minor participant in
that offense, for he did deliver the heroin and he did collect the money for it.
The judgment of the district court is